Stephens v. Mayor of Booneville

34 Mo. 323 | Mo. | 1864

Bay, Judge,

delivered the opinion of the court.

Without discussing the question as to whether the corporate authorities of the city of Booneville have power under the charter of said city to impose a tax upon bonds, notes, and other securities, owned by persons other than brokers or exchange dealers, upon solvent persons or corporations, it is manifest to us that no such power existed with reference to the notes in controversy.

If these notes had belonged to Stephens in his individual right, the case would have presented a very different aspect. It is true that at common law the legal property in the personal estate of the testator vests on his death in the executor ; but it was held by this court in Lessing, Meyers & Co. v. Vertrees, 32 Mo. 431, that under our system of laws he held only a qualified interest in the same; that in point of fact he held the personal effects and choses in action of the decedent as trustee for the creditors and next of kin. They are, moreover, subject to the control and direction of the Probate Court; and if an administrator shall resign, or his letters be revoked, ho is required by statute to deliver such effects to his successor.

It appears from the agreeed case that the notes assessed belonged to one Daniel Davis, the plaintiff’s intestate, who at the time of his death resided in Cooper county, beyond the corporate limits of Booneville, and were due from persons residing in the counties of Randolph and Howard. It is insisted by the respondent, that because the administrator happened to be a resident of Booneville, and the legal custodian of the notes, the notes became taxable for municipal purposes, upon the theory that they constituted property within the corporate limits of the city. It will be observed that if this theory is correct, then the question as to the power of the authorities of Booneville to impose the tax, depends entirely upon the residence of the person who may be appointed to take charge of and settle up the estate. If Stephens had resided outside of the limits of the city, it is not pretended that the estate could be taxed for such a purpose; why then should the fact of his residing in Booneville subject the estate to a burden which could not otherwise be imposed? Eor many purposes, movables are deemed in law to have no situs except that of the domicil of the owner. In this case Stephens is the mere representative of Davis, and, for the mere purpose of taxation, the situs of the notes may well be regarded as at the domicil of the deceased.

We are of opinion, therefore, that the court below should have enjoined the collection of the tax.

Judgment reversed and cause remanded, with instructions to proceed in conformity with this opinion ;

the other judges concurring.